One of the most frequently asked questions by prospective or newly appointed company directors is regarding their liability for the debts of the company.
Article 367 of the Spanish Companies Act (hereinafter the SCA) penalizes the company’s directors with joint and several liability for the company’s debts arising after the occurrence of any of the causes for dissolution provided in Article 363 when they have not promoted the dissolution of the company in the terms provided in Article 365.
In relation to the above, Article 367 of the SCA establishes the presumption that the corporate obligations are subsequent to the appearance of the cause for dissolution. Therefore, it is for the defendant director to prove that the social debt is prior.
However, this rule of liability presupposes that the creditor must first have proved the existence of a cause for the dissolution of the company, since it is the creditor who brings the action for the liability of the directors and this cannot be claimed if the fact on which it is based is not first proved.
A reasonable doubt is whether the failure to submit the company’s accounts constitutes an immovable presumption of a situation of dissolution due to losses that gives rise to the automatic liability of the director. The Supreme Court does not see it that way.[1] The fact that the company does not have its accounts deposited with the Commercial Registry is an indication that it is in a situation of losses, but it does not in itself determine liability for corporate debts, yet still must be accompanied by other circumstances indicative or suggestive of the cause of dissolution, for example, closure of the establishment or widespread non-payment of debts. The creditor, knowing these latter circumstances, cannot resort to an appropriate means such as going to the Commercial Registry to contrast them with the company’s accounts and thus verify whether or not there is a situation of legal dissolution, and indeed since when.
The Supreme Court, in a recent judgment of 27 February 2024, corroborates this criterion and insists that there must be a causal link between the failure to deposit the accounts and the damage caused.
The judgment states that non-compliance with the deposit obligation has as a consequence a double effect: the closure of the registry and the application of sanctions, but neither does it constitute a legal cause for dissolution or have as a consequence in itself the obligation of the directors to respond for the company’s debts. In the judgment of February 27, 2024, it is also consolidated that the failure to submit (to the Commercial Registry) the accounts does not amount to the presumption of the paralysis of the company, nor the impossibility of fulfilling the corporate purpose, although it is a fact that can be taken into account to prove the equity deficit or corporate inactivity; In these cases, there is a reversal of the burden of proof, so that it will be the defendant (director) who will have to prove that there is no situation of equity impairment. Thus, when a director fails to comply with his obligation to file the accounts over several years and is unable to prove that the company is not in a situation of dissolution, they will be personally, jointly and severally liable for the company´s debts.
Regarding the limitation of action for social liability for social debts, as provided for in article 367 SCA, the Judgments of October 31, 2023, February 20, 2024 and February 27, 2024, establish that the limitation period is not that provided for in article 241 of the SCA (4 years), since the latter operates only in relation to individual and social actions, which are distinct assumptions and are of a different nature; The latter two respond to the damages caused, while the action under Article 367 SCA is an action for legal liability for third parties´ debt. Thus, the action for liability for debts will have the same limitation period as the debt, and the dies a quo will be the same as that of the action against the debtor company. In any case, the 4-year limitation period provided for in Article 949 of the Commercial Code only applies to partnerships regulated by the Code, not to Companies Limited by Shares / Membership Interests. And finally, for the purposes of interrupting the statute of action, Articles 1973 and 1974 of the Civil Code will apply.
Eduardo Vilá
Vilá Abogados
For more information please contact.
28th of March 2024
[1] Judgments 652/2021 of 29 September and 94/2024 of 25 January.
